Whistleblower Act not available, Texas Supreme Court says

City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008) (Opinion by Justice Wainwright) (state anti-discrimination statute as exclusive remedy for retaliation claim at issue)

Resolving this public employment dispute, the Texas Supreme Court tells whistleblower plaintiff that he should have brought retaliation complaint under the state's anti-discrimination statute and dismisses his case because suit under the Texas Commission on Human Rights Act (CHRA) would have required going through an administrative complaint process before seeking relief in court, which the plaintiff had not done.

While acknowledging that state and federal anti-discrimination statutes operate in parallel fashion (thus allowing aggrieved employees to invoke either or both), the Supreme Court is adamant that a public employee should not be allowed to chose between the Texas Whistleblower Act and the Texas Commission on Human Rights Act. Based on that interpretation of legislative intent, the case can thus be -- and is -- resolved in favor of the Defendant City. The Plaintiff cannot refile because the deadline to file the Texas CHRA complaint has long passed.

In some sense, the case presents the reverse scenario of Igal v. Brightstar Information Tech Group. Inc., No. 04-0931 (Tex. May 2, 2008), in which the Supreme Court told the plaintiff he should have sought relief on his common-law claim in court, rather than going through the administrative process in the course of which it was determined that his statutory administrative claim was filed too late. As Igal's common-law claim for unpaid wages was not time-barred under the applicable statute of limitations, however, the Court imbued the Commission's disposition with res judicata effect to deny the Plaintiff a judicial remedy. It did so even though the administrative agency is not a court of competent jurisdiction, never had the power to adjudicate a breach-of-contract or any other common-law claim, and never rendered a final decision on the merits of the wage claim. To produce the desired outcome, the Court simply redefined the doctrine of res judicata for the occasion and established new binding precedent that will govern disposition of other cases presenting a similar scenario.

The employer-friendly opinions in both cases were written by Justice Dale Wainwright. In contrast to Igal v. Brightstar, however, which drew a vigorous dissent by Justice Scott Brister, none of the other justices dissented in Lopez.

City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Wainwright) (Whistleblower Act, TCHRA, state anti-discrimination act, exclusive remedy, failure to first file with agency, exhaustion of administrative remedy, prerequisites for bringing suit) (opinion in pdf)

Holding: Public employee's retaliation claim for reporting age and race discrimination cannot be brought as a Whistleblower suit. Because the discharged employee did not file an administrative claim, and thus failed to meet the requirement for suing under the TCHRA, the Court dismisses the case.

Opinion below: City of Waco v. Lopez, No. 10-04-00085-CV (Tex.App.- Waco [14th Dist.] Dec. 14, 2005)(holding that the CHRA does not provide the exclusive remedy for Lopez's claim) ═════════════════════════════════════════════
Excerpt from the Supreme Court's Opinion written by Justice Wainwright: The City of Waco appeals the denial of its plea to the jurisdiction in this Whistleblower Act suit filed by a former city employee, Robert Lopez, alleging retaliatory discharge for reporting age and race discrimination in violation of the City’s EEO policy. We hold that the Texas Commission on Human Rights Act (CHRA), Tex. Lab. Code §§ 21.001–.556, provides the exclusive state statutory remedy for Lopez’s retaliatory discharge claim because he is a covered employee under the CHRA and his retaliation claim falls squarely within the CHRA’s ambit. Because Lopez’s retaliation claim is not actionable under the only pleaded theory and the pleadings and evidence establish that Lopez has not satisfied the administrative prerequisites for maintaining a retaliation claim under the CHRA, we reverse the court of appeals’ judgment and dismiss the case. ═════════════════════════════════════════════
TERMS: public employment retaliatory discharge retaliation claim protected actvity whistleblower claim discrimination complaint interlocutory appeal of plea to the jurisdiction filing prerequisites failure to exhaust administrative remedies election of remedies exclusive remedy ALSO SEE: Other 2008 Texas Supreme Court Opinions ═════════════════════════════════════════════